San Francisco’s suit against ExxonMobil goes up in smoke

On April 17, Boulder sued ExxonMobil and Suncor for damages stemming from global warming caused by the carbon dioxide released into the atmosphere from the burning of the oil, natural gas and coal they produced.

The Boulder suit was similar to a suit brought earlier by the cities of Oakland and San Francisco against five major oil companies, including ExxonMobil. That suit was partially based on the legal theory used in successful suits against tobacco companies — that the companies knew their products were doing great harm and that they not only deliberately hid knowledge of the dangers, but lied about them in order to stay in business and keep their obscene profits rolling in.

The outside lawyers in the Boulder case may or may not have been dreaming of some obscene profits of their own, but on June 25 a federal judge in California dramatically reduced their chances of getting a big payday when he blew the Oakland/San Francisco case out of the tub.

In dismissing the suit, U.S. District Judge William Alsup wrote that the issue in the case “is not over science.”

“All parties agree that fossil fuels have led to global warming and ocean rise and will continue to do so…,” he wrote. “The issue is a legal one — whether these producers of fossil fuels should pay for anticipated harm that will eventually flow from a rise in sea level.”

Judge Alsup called the scope of the plaintiffs’ theory of the case “breathtaking.”

“It would reach the sale of fossil fuels anywhere in the world, including all past and otherwise lawful sales, where the seller knew that the combustion of fossil fuels contributed to the phenomenon of global warming. While these actions are brought against the first, second, fourth, sixth and ninth largest producers of fossil fuels, anyone who supplied fossil fuels with knowledge of the problem would be liable…

“Their theory rests on the sweeping proposition that otherwise lawful and everyday sales of fossil fuels, combined with an awareness that greenhouse gas emissions lead to increased global temperatures, constitute a public nuisance,” he said.

Whether or not the sale of fossil fuels constitute a “public nuisance” is central to the case, because the claim that they do is “the sole claim for relief” that the plaintiffs are making, according to the opinion.

A “public nuisance” under federal law is an “unreasonable interference with a right common to the general public,” Judge Alsup said, quoting from a standard legal work titled the The Restatement of Torts, Second.

Where the interference is intentional, as alleged by Oakland and San Francisco, “it must also be unreasonable,” and determining whether or not it is unreasonable involves “the weighing of the gravity of the harm against the utility of the conduct,” according to the Restatement. And in evaluating the utility of the conduct, “it is necessary to consider the social value that the law attaches to the primary purpose of the conduct, the suitability of the conduct to the character of the locality and the impracticality of preventing or avoiding the invasion.”

And that context framed the core of Judge Alsup’s decision in the case:

“With respect to balancing the social utility against the gravity of the anticipated harm, it is true that carbon dioxide released from fossil fuels has caused (and will continue to cause) global warming,” he wrote. “But against that negative, we must weigh this positive: our industrial revolution and the development of our modern world has literally been fueled by oil and coal. Without those fuels, virtually all of our monumental progress would have been impossible. All of us have benefitted. Having reaped the benefit of that historic progress, would it really be fair to now ignore our own responsibility in the use of fossil fuels and place the blame for global warming on those who supplied what we demanded? Is it really fair, in light of those benefits, to say that the sale of fossil fuels was unreasonable?”

The Restatement of Torts, Second, published in 1979, is produced by the American Law Institute. It summarizes general principles of common United States tort law. (Common law is law created by judicial decisions and precedents rather than by statutes passed by a legislature.) It’s striking that a federal judge is quoting at length from it in deciding a case that could ultimately involve trillions of dollars in damages and have global repercussions; Judge Alsup is in effect telling the attorneys for San Francisco and Oakland that they should have paid more attention in law school and needed some remedial instruction.

But the real import of the ruling is that the “gravity of the anticipated harm” of global warming must be weighed against the “social utility” of the industrial revolution and the emergence of modern civilization, which were fueled by fossil fuels.

The rhetorical question Judge Alsup asks is the one that the city council members in San Francisco, Oakland — and now Boulder — need to answer, but which out of ignorance, cynicism or political solipsism they refuse to ask: Having reaped the benefits of industrial civilization, “would it really be fair to now ignore our own (their own) responsibility in the use of fossil fuels and place the blame for global warming on those who supplied what we demanded?”

Or even sane.

This opinion column does not necessarily reflect the views of Boulder Weekly.